For Toronto, Ford’s meddling has a silver lining
Parties might act to fortify city’s democracy
B arring insurrection, coup, natural disaster or some as-yet-unforeseen kind of Ford-brand pandemonium, Toronto’s Oct. 22 municipal election will go ahead with 25 wards instead of 47. On Wednesday morning, a three-judge panel of the Court of Appeal stayed Justice Edward Belobaba’s ruling overturning Bill 5, which redrew the city’s electoral map with just weeks to go before the election. The government will now shelve Bill 31, which was essentially Bill 5 with the notwithstanding clause attached, pending the final disposition of its appeal of the Belobaba ruling. That will continue after the election, and may well wind up at the Supreme Court.
In a ruling issued just hours after they heard arguments on Tuesday, Associate Chief Justice Alexandra Hoy and Justices Robert Sharpe and Gary Trotter conceded the provinces’ unprecedented meddling may have been unfair and vexatious and “perhaps alarming” to candidates. But they could not find their way down the same path Belobaba took from there to a Charter violation.
“We have concluded that there is a strong likelihood that (the) application judge erred in law and that the Attorney General’s appeal to this court will succeed,” the justices wrote.
To a layman’s ears, at least, lawyers for the respondents — several would-be candidates and the City of Toronto, among others — argued compellingly that the Attorney General’s application was absurd: it was begging the court for relief from a situation that it created and that it could remedy simply by allowing the 47-ward election to go ahead.
Nevertheless, the judges concluded, “it is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the legislature.”
It’s difficult to disagree. As much as Ford’s government has violated political norms, we shouldn’t want the remedy to do likewise — whether it’s the feds invoking Disallowance (as a majority of Toronto city councillors voted to support) or the Lieutenant-Governor refusing Bill 31 Royal Assent (as requested Tuesday by various petitioners led by former lefty Toronto mayor John Sewell), or a judge undermining provincial authority over municipalities on grounds that collapse in higher courts.
So now, perhaps, Toronto can return to reality — or as close as you can get during an election campaign.
No, there was no magic brand of fit Mayor John Tory or hypothetical mayor Jennifer Keesmaat or anyone else could have pitched that would have stopped Ford in his tracks. Torontonians’ fits are a feature for Ford, not a bug. In defending Bill 5 he has repeatedly namechecked various left-leaning allegedly do-nothing councillors. Their apoplexy sustains him. In his book about Rob Ford, councillor John Filion quoted Doug Ford on his plans for Tory after losing the 2014 mayoral election: “He’s going to take off the sheets in bed at night and find my teeth wrapped around his nuts.”
And no, there is no real hope of relief in the ongoing appeals process over Bill 5. Even if the Supreme Court were to side with Belobaba, it would only repudiate the way in which the province wielded its powers — i.e., in the middle of an election — not the powers themselves. Had the government waited four years, or even legislated a two-year council term at 47 wards to be followed by an election at 25, it would have been on plenty-thick ice. It could easily re-legislate a 25-ward Toronto after such a ruling, and without using the notwithstanding clause.
It’s time now to talk about what comes next. In the short term, that could mean discussing how to make the best of 25 wards for at least eight years — a bit prosaic for the campaign trail, admittedly, but crucially important.
NOW, PERHAPS, TORONTO CAN RETURN TO REALITY.
More aspirationally, it could also mean discussing how to leverage this latest Ford mess to the city’s benefit.
Many have fretted that Ford will have emboldened other governments and governments-in-waiting to use the notwithstanding clause more. But because of the dodgy, vindictive and pointless circumstances in which Ford tried to use it, just as many other governments and governments-in-waiting are going to revile the manoeuvre all the more.
Similarly, while there is no telling how much Ford might meddle in Toronto’s affairs in the coming years, at every step along the way he will make the idea of meddling in Toronto affairs more toxic for future non-Conservative governments. All provincial governments have screwed over Toronto now and again; as of this summer, screwing over Toronto is Something Doug Ford Does. And no Liberal or New Democrat wants to be like Doug Ford.
When things die down a bit, the opposition parties will have to take a break from denouncing Ford and explain what they’ll do in future to strengthen Toronto’s democracy: restore control over its political boundaries, provide more taxation powers, allow road tolling, whatever. It would be Pollyannaish to suggest Ford has caused a political awakening in Toronto, but he has certainly made it more attractive for the other parties to take Toronto more seriously, and concurrently much more risky for them to be seen reneging on such promises in future.